False Forbearance

Two weeks ago, Washington Gov. Christine Gregoire vetoed a bill that would have clarified the rules for supplying medical marijuana in her state. She cited an April 14 letter in which Jenny Durkan and Michael Ormsby, the U.S. attorneys for Washington, threatened to prosecute not only growers and providers but also "others who knowingly facilitate" their actions, including landlords, financiers, and even state employees who license and regulate medical marijuana suppliers.

U.S. attorneys in Arizona, California, Colorado, Hawaii, Montana, Rhode Island, and Vermont have sent similar letters in recent months, discouraging some jurisdictions from proceeding with plans to establish licensed medical marijuana dispensaries. These threats, which are backed by the Justice Department, kill any lingering hopes that President Obama would keep his campaign promise to respect the medical marijuana laws that have been enacted in 15 states and the District of Columbia.

During his presidential campaign, Obama repeatedly said he would call off the Drug Enforcement Administration's raids on both medical marijuana users and their suppliers. In a March 2008 interview with southern Oregon’s Mail Tribune, he said, "I'm not going to be using Justice Department resources to try to circumvent state laws on this issue." Two weeks after Obama took office, a White House spokesman reiterated that position, saying, "The president believes that federal resources should not be used to circumvent state laws."

In October 2009, David Ogden, then the deputy attorney general, sent a memo that seemed to fulfill this promise. "As a general matter," he told U.S. attorneys, they "should not focus federal resources" on "individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana."

Yet the DEA's medical marijuana raids not only have continued but are more frequent under Obama than they were under George W. Bush. Americans for Safe Access (ASA), which argues that patients who can benefit from marijuana should be able to obtain it legally, counts well over 100 raids in the two years and four months since Obama's inauguration, compared to about 200 during Bush's eight years in office. "The Obama administration really is being more aggressive than the administration of his predecessor," says ASA spokesman Kris Hermes.

At first it seemed the DEA was targeting growers and sellers who arguably were not "in clear and unambiguous compliance" with state law, since the rules for supplying medical marijuana were fuzzy in jurisdictions such as California, Colorado, and Montana. But the U.S. attorney letters conclusively show that, contrary to the impression left by the Ogden memo, complying with state law provides no protection against federal prosecution.

Justice Department spokeswoman Tracy Schmaler insists there is "no inconsistency" between the recent threats and the Ogden memo, which she says "talks about not investigating sick individuals who might be in compliance with state law." Actually, the memo refers not to "sick individuals" but to "individuals" generally, and it cites as examples not only patients but "caregivers" who supply them with marijuana.

In any case, the Justice Department's distinction between patients and suppliers cannot be reconciled with Attorney General Eric Holder's description of the new policy. "The policy is to go after those people who violate both federal and state law," he said in March 2009. "Our focus will be on people, organizations that are growing, cultivating substantial amounts of marijuana and doing so in a way that's inconsistent with federal and state law."

The new gloss on the Ogden memo, notes Hermes, is "exactly the same as what Bush said for years: 'We're not targeting patients.' There is no change."

The problem, of course, is that most of the "sick individuals" the Obama administration claims to be sparing are not up to the task of growing their own marijuana. When DEA raids or threats to landlords shut down dispensaries, Hermes notes, "patients wake up the next morning wondering where they're going to find their medication." Obama's position is that patients can have marijuana; they just can't get it anywhere.

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Rafiq said...
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